WAFERGEN BIO-SYSTEMS, INC. PUT AGREEMENT
THIS PUT AGREEMENT (this
“Agreement”) is entered
into as of December 14, 2010, by and among WaferGen Bio-systems, Inc., a Nevada
corporation (“WaferGen
US”), and the Malaysian Technology Development Corporation Sdn Bhd
(“MTDC” or “Holder”) of the Series C-1
Redeemable Convertible Preference Shares and the Series C-2 Redeemable
Convertible Preference Shares in WaferGen Biosystems (M) Sdn. Bhd. (formerly
known as Global Dupleks Sdn. Bhd.), a Malaysian corporation (the “Company”) (“Series C Shares”), pursuant to
that certain Share Subscription Agreement dated as of December 14, 2010, among
WaferGen US, MTDC and the Company (the “Purchase
Agreement”). Any term not defined herein shall have the
meaning ascribed to such term in the Purchase Agreement.
RECITALS
A. WHEREAS,
MTDC has entered into the Purchase Agreement for the purchase of and
subscription for certain Series C Shares of the Company.
B. WHEREAS,
in order to induce MTDC to enter into the Purchase Agreement, WaferGen US has
agreed to grant to MTDC an option to put (the “Put Right”) to WaferGen US the
Series C Shares held by MTDC, whereby the Series C Shares held by MTDC will be
exchanged for shares of Common Stock of WaferGen US on the terms set forth
below.
NOW,
THEREFORE, in consideration of the mutual promises, representations, warranties,
covenants and conditions set forth in this Agreement, the parties mutually agree
as follows:
AGREEMENT
SECTION 1
PUT
RIGHT
1.1 Put
Right.
(a) Upon
the earlier of (i) receipt by WaferGen US of a written request from the Holder
of Holder’s desire to exercise the Holder’s Put Right (a “Holder’s Put Notice”) or (ii)
the one year anniversary of the date of this Agreement (the “Anniversary”), then all, but
not less than all, of the Holder’s Series C Shares shall be exchanged as
described in Section 1.2 below (the “Exchange”). The
effective date of the Exchange (the “Exchange Date”) shall be the
date on which WaferGen US receives the Holder’s Put Notice or the date of the
Anniversary, which is earlier.
(b) After
the earlier of (i) delivery of such Holder’s Put Notice or (ii) the Anniversary,
the Holder shall deliver all of such Holder’s share certificates and duly
executed share transfer forms with respect to such Series C Shares to the
Secretary of WaferGen US (or to his/her order) as promptly as practicable (but
in no event more than 30 days after the date thereof) and take any other
actions reasonably required to effectuate the transfer of all such Holder’s
Series C Shares to WaferGen US. WaferGen US may nominate its nominee(s) to
accept the transfer of the Series C Shares.
1.2 The Exchange; No Fractional
Shares.
(a) Upon
the occurrence of an Exchange, each one (1) of the Holder’s Series C Shares
subject to such Holder’s Put Notice shall be converted into the right to receive
one (1) new share of Common Stock of WaferGen US (the “Exchange Security”) (as
adjusted for stock splits, recapitalization, combinations and similar
transactions) effective as of the Exchange Date.
(b) All
Exchange Securities shall be aggregated and issued to the Holder, except that no
fractional shares of Exchange Securities shall be issued upon the occurrence of
an Exchange. If, after the aforementioned aggregation, the conversion
would result in the issuance of any fractional share, WaferGen US shall, in lieu
of issuing any fractional share, pay cash equal to the product of such fraction
multiplied by the per share fair market value of the Exchange Securities (as
determined in good faith by the Board of Directors of WaferGen US).
(c) Subject
to the delivery by the Holder of its share certificates and other documents to
WaferGen US as required hereby, upon the occurrence of the Exchange, WaferGen US
shall as soon as practicable (but in no event more than 30 days after the
Exchange Date) issue to the Holder share certificates representing the Exchange
Securities. Notwithstanding the foregoing, (i) the issuance of the
Exchange Securities shall be deemed effective as of Exchange Date, and (ii) upon
the occurrence of the Exchange as a result of the Anniversary, the Exchange
shall be deemed to have automatically occurred on the Exchange Date, regardless
of any other actions taken by the Holder and regardless of whether the Holder
has delivered share certificates representing the Series C Shares to WaferGen
US; provided that
WaferGen US shall have no obligation to deliver certificates representing the
Exchange Securities to the Holder in the event the Holder fails to deliver the
share certificates representing the Series C Shares to WaferGen US.
1.3 Rights After
Exchange. From and after the applicable Exchange, all rights
of the Holder with respect to the exchanged Holder’s Series C Shares shall cease
with respect to such shares (except the right to receive the Exchange
Securities, and any cash payment for fractional shares, without interest upon
surrender of their certificate or certificates), and such shares shall be owned
legally and beneficially by WaferGen US for all purposes and will be transferred
to WaferGen US on the books and records of the Company.
1.4 Rights After
Conversion. If at any time any or all of Holder’s Series C
Shares are converted into Ordinary Shares of the Company for any reason, the
Holder’s Put Right pursuant to this Agreement with respect to all of the
Holder’s Series C Shares shall terminate and expire in its entirety upon such
conversion, and the Holder shall have not have any Put Right with respect to any
Ordinary Shares held by the Holder.
SECTION 2
MISCELLANEOUS
2.1 Governing
Law. This Agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of California
in the United States of America, without giving effect to the choice of law
provisions thereof.
2
2.2 Arbitration. The
parties agree that any and all disputes, claims or controversies arising out of
or relating to this Agreement that are not resolved by their mutual agreement
shall be submitted to final and binding arbitration in New York, New York before
JAMS, or its successor, pursuant to the United States Arbitration Act,
9 U.S.C. Sec. 1 et seq. Any party may commence the
arbitration process called for in this Agreement by filing a written demand for
arbitration with JAMS, with a copy to the other party. The
arbitration will be conducted in accordance with the provisions of JAMS’
Streamlined Arbitration Rules and Procedures in effect at the time of filing of
the demand for arbitration. The parties will cooperate with JAMS and
with one another in selecting an arbitrator from JAMS’ panel of neutrals, and in
scheduling the arbitration proceedings. The parties covenant that
they will participate in the arbitration in good faith, and that they will share
equally in its costs. The provisions of this Section 2.2 may be
enforced by any court of competent jurisdiction, and the party seeking
enforcement shall be entitled to an award of all costs, fees and expenses,
including attorneys fees, to be paid by the party against whom enforcement is
ordered.
2.3 Assignment of Put
Right. The Put Right granted in this Agreement may only be
assigned by the Holder in connection with a permitted transfer of Series C
Shares by the Holder in accordance with Clause 18 of the Purchase
Agreement.
2.4 Successors and
Assigns. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties (including permitted
transferees of any Series C Shares). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
2.5 Severability. In
case any provision of this Agreement shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
2.6 Amendment and
Waiver. Except as otherwise expressly provided, the
obligations of WaferGen US and the rights of MTDC under this Agreement may be
amended, modified or waived only with the written consent of WaferGen US and
MTDC (excluding for purposes of this calculation any Series C Shares held by
WaferGen US or its nominee(s)).
2.7 Delays or
Omissions. It is agreed that no delay or omission to exercise
any right, power, or remedy accruing to the Holder, upon any breach, default or
noncompliance of WaferGen US under this Agreement, shall impair any such right,
power, or remedy, nor shall it be construed to be a waiver of any such breach,
default or noncompliance, or any acquiescence therein, or of any similar breach,
default or noncompliance thereafter occurring. It is further agreed
that any waiver, permit, consent, or approval of any kind or character on the
Holder’s part of any breach, default or noncompliance under the Agreement or any
waiver on the Holder’s part of any provisions or conditions of this Agreement
must be in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement, by
law, or otherwise afforded to the Holder, shall be cumulative and not
alternative.
3
2.8 Notices. All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (i) upon personal delivery to the party to be notified,
(ii) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient; if not, then on the next business day,
(iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after
deposit with a United States recognized overnight courier, specifying next-day
delivery, with written verification of receipt. All communications
shall be sent to the party to be notified at the address as set forth on the
signature pages hereof or at the current address of the Holder on the books and
records of the Company or at such other address as such party may designate by
ten (10) days’ advance written notice to the other parties
hereto. All notices sent to the Company or WaferGen US shall also be
sent to: Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx
Xxxxxxxxx, XX 00000, Attention: Xxxx X. Xxxxxxxx
(Telecopier: (000) 000-0000).
2.9 Attorneys’
Fees. In the event that any dispute among the parties to this
Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
2.10
Titles and
Subtitles. The titles of the sections and subsections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
2.11 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument.
2.12 Certain Restrictions and
Representations. The Holder understands that any shares of
Common Stock of WaferGen US to be received in an Exchange may be characterized
as “restricted securities” under the federal securities laws inasmuch as they
would be acquired from WaferGen US in a transaction not involving a public
offering and that under such laws and applicable regulations, such securities
may be resold without registration under the Securities Act of 1933, as amended
(the “Act”), only in certain limited circumstances. In this regard,
the Holder represents that it is familiar with Rule 144 under the Act, as
presently in effect, and understands the resale limitations imposed thereby and
by the Act. The Holder further represents that the Series C Shares,
along with any Exchange Securities, are being acquired for investment for the
Holder’s own account not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof. The acquisition by the
Holder of the Series C Shares, along with any Exchange Securities, shall
constitute confirmation of the representation by Holder that the Holder does not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any third person,
with respect to any of the Series C Shares or the Exchange
Securities. The Holder also represents that it is an “accredited
investor” within the meaning of Securities and Exchange Commission Rule 501 of
Regulation D, as presently in effect.
4
2.13 Transfer
Taxes. All excise, transfer, stamp, documentary, filing,
recordation and other similar taxes which may be imposed or assessed as the
result of any Exchange, together with any interest, additions or penalties with
respect thereto and any interest in respect of such additions or penalties,
shall be borne equally by WaferGen US and the Holder consummating such
Exchange.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
5
In Witness
Whereof, the parties hereto have executed this Put
Agreement as of the date set forth in the first paragraph
hereof.
|
WAFERGEN
US:
|
||
|
By:
|
||
|
Xxxxxx
Xxxxxx
|
||
|
Chairman,
President & Chief Executive
Officer
|
||
|
Address:
|
||
|
0000
Xxxxx Xxxxx Xxxxxxx
|
||
|
Xxxxxxx,
XX 00000
|
||
|
Facsimile:
_____________
|
||
Signature
Page to Put Agreement
|
WAFERGEN
MALAYSIAN INVESTOR:
|
||
|
Malaysian
Technology Development
Corporation
Sdn. Bhd.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address:
|
||
|
Facsimile:
_________________
|
||
Signature
Page to Put Agreement
